Class Action Seeking Medical Monitoring due to Exposure to Contaminated Drinking Water Denied Class Action Treatment because Plaintiffs Failed to Demonstrate Existence of Common Proof as to Each Class Member’s Injuries West Virginia Federal Court Holds

Plaintiffs filed a putative class action in West Virginia state court against E.I. du Pont de Nemours and Company seeking damages for harm allegedly caused by drinking water contaminated with perfluoroctanoic acid, also known as “C-8,” which is a chemical that does not degrade and is “used in the manufacture of many industrial and consumer products including non-stick cookware coatings and architectural coatings.” Rhodes v. E.I. Du Pont De Nemours & Co., ___ F.Supp.2d ___ (S.D.W.V. September 30, 2008) [Slip Opn., at 1-2]. Specifically, the class action complaint alleged that DuPont’s Washington Works plant in West Virginia released C-8 into the drinking supply of the Parkersburg Water District, and that because C-8 “is not a naturally occurring substance[,] … all C-8 found in human blood is attributable to human activity.” Id., at 2. Defense attorneys removed the class action to federal court, id., at 5. Plaintiffs moved the court to certify the litigation as a class action; defense attorneys opposed class action treatment. Id., at 1. The district court denied plaintiffs’ motion explaining that while plaintiffs “presented compelling evidence that exposure to C-8 may be harmful to human health,” the class action is premised on “some potential harm to the general public” rather than on “specific injuries to each member of the proposed class.” Id. The federal court explained at page 1, “The fact that a public health risk may exist is more than enough to raise concern in the community and call government agencies to action, but it does not show the common individual injuries needed to certify a class action.” Accordingly, the district court denied plaintiffs’ class action certification motion.

We summarize the facts only briefly. DuPont has used C-8 at its plant for more than 50 years, and has released C-8 into the air and into the Ohio River. Rhodes, at 2-3. The class action alleges that C-8 emissions from the DuPont plant contaminated the public water supply and that in 1984 “detectable levels of C-8 were discovered in the tap water of [certain] communities.” Id., at 3. While the precise effect of C-8 exposure “remains uncertain,” several studies have associated such exposure to various health problems, including several types of cancer. Id. There have been calls for “precautionary measures such as removing C-8 from drinking water supplies and using alternative drinking water sources, especially for children and the elderly,” id., and various state and federal agencies have directed attention to the regulation of C-8 emissions and exposure, see id., at 3-4. A prior class action involving C-8 emissions from the Washington Works plant was filed in West Virginia state court against DuPont in 2002 entitled Leach v. E.I. Du Pont Nemours & Co.; the state court certified that lawsuit as a class action and the class action settlement ultimately approved in Leach defined the class as “all individuals who, for a period for at least one year, consumed drinking water containing .05 ppb (parts per billion) or greater of C-8 attributable to releases from the Washington Works plant from any of six specified Public Water Districts or any eligible private sources and who did not opt out of the class or waive their class member rights.” Id., at 4. Parkersburg Water District was not part of that class action because at the time its water contained less than .05 ppb of C-8; at the time the new class action was filed, the C-8 levels exceed that amount. Id., at 5.

After conducting “extensive discovery,” plaintiffs moved for the district court to certify the litigation as a class action under Rule 23(b)(1) and Rule 23(b)(2), defining the class as “all individuals (other than Leach Class members) who, for a period of at least one year since November 1, 2005, to the date of an Order certifying the class herein, have been residential water customers of the [PWD].” Rhodes, at 5. The district court ordered a preliminary hearing be held on the class action certification motion for purposes of examining the expert testimony in support of the motion, id., at 6. Plaintiffs produced two experts that testified, respectively, that C-8 exposure above .02 ppb in drinking water “would be significant after one year because health ‘effects would be observable at that time through clinical tests,’” id., at 6-7, and that C-8 generally causes several identified diseases, id., at 7. For reasons discussed in the Note, below, the district court analyzed only whether plaintiffs’ medical monitoring cause of action could be properly certified for class action treatment. Id., at 12.

The federal court explained that “West Virginia recognizes a cause of action for medical monitoring expenses ‘where it can be proven that such expenses are necessary and reasonably certain to be incurred as a proximate result of a defendant’s tortious conduct.’” Rhodes, at 12 (citation omitted). Based on its rigorous and detailed analysis, the district court concluded that class action treatment would be inappropriate because the proposed class action claims “require individualized inquiries that are not conducive to common treatment as required by Rule 23.” Id., at 15. In brief, the cohesiveness test of Rule 23(b)(2) requires “evidence that commonly proves the elements of a medical monitoring claim for each proposed class member.” Id., at 16. Here, however, “plaintiffs have not shown that each of the potential class members claims can be proven by common rather than individualized proof, nor have they shown that the plaintiffs’ class is cohesive.” Id., at 17. The court concluded that plaintiffs’ direct and indirect evidence of class-wide significant exposure fell short of establishing common proof for each and every class member’s exposure to C-8. See id., at 17-20. The district court found further that plaintiffs could not “commonly prove that each class member has suffered a significantly increased risk of disease.” Id., at 20. As the federal court explained at page 20, “Common proof of this element is complicated because the plaintiffs must not only show that the class members have experienced a significantly increased risk but also that: 1) the risk is of a serious latent disease, 2) the defendant proximately caused that risk to each class member, and 3) the risk is significant relative to what it would have been absent the exposure.” Plaintiffs conceded that “individual characteristics and habits will affect the level of risk experienced by each class member.” Id., at 21. Based on its detailed analysis of the evidence, the federal court concluded that plaintiffs could note establish “whether each class member has experienced a significantly increased risk of disease,” see id., at 21-27. Finally, the court found that whether individual class members would need medical monitoring could not be shown on a class-wide basis. See id., at 27. Put simply, not every class member will necessarily require medical monitoring, id., at 28; the court specifically found that plaintiffs’ expert’s testimony “cannot provide common proof that medical monitoring is reasonably necessary for the proposed class,” id., at 29.

In sum, the court found that plaintiffs failed to establish that common proof existed as to the three contested elements required under West Virginia law to establish the class action’s medical monitoring claim, Rhodes, at 29; rather, “it is plain that a determination as to each of those elements for each class member will require an individualized inquiry” thus requiring denial of a Rule 23(b)(2) class, id., at 30. The district court also rejected plaintiffs’ request to certify the litigation as a class action under Rule 23(b)(1) because it found that “plaintiffs have not shown that ‘practical necessity’ forces DuPont to act in the same manner towards all the class members.” Id., at 30. Again, “each class member’s claim is so individualized, [that] disparate remedies and standards of conduct are likely,” id., at 30, thereby rendering class action treatment inappropriate, id., at 30-31. Because the district court found that the class was neither ascertainable nor cohesive, and that the claims in the class action complaint “require too much of an individualized inquiry to qualify for class-wide treatment,” it denied plaintiffs’ class action certification motion. Id., at 31. However, the district court did not dismiss the individual claims of the named plaintiffs, id.

NOTE: The class action complaint actually contained six causes of action: negligence; gross negligence, reckless, willful and wanton conduct; private nuisance; past and continuing trespass; past and continuing battery; and the tort of medical monitoring. Rhodes, at 12. In their motion for class certification, however, plaintiffs “failed to provide any argument or analysis as to their causes of action, with the sole exception of their claim for medical monitoring, and have similarly neglected to analyze the susceptibility of each claim to class treatment.” Id. Indeed, the district court stated at page, “Throughout this class certification process, the plaintiffs ignored those other causes of action until they belatedly and minimally addressed them in their Post-Hearing Reply Brief In Support of Class Certification.” The district court limited its discussion to the medical monitoring claim, finding that plaintiffs “failed to meet their burden of showing that class certification is appropriate” as to their remaining claims. Id.

Michael J. Hassen's litigation practice spans almost 30 years and emphasizes general business and commercial litigation, including class action defense and unfair business practice representative actions (section 17200).

He represents lenders in all facets of lender litigation, ranging from class actions and unfair business practices based on alleged "predatory" lending and RESPA violations or alleged violations of the Fair Debt Collection Practices Act, to claims alleging elder abuse or challenging the validity or priority of liens.

Michael also has significant experience in business torts such as misappropriation of trade secrets and raiding of corporate employees, ADA claims, and all phases of commercial and real estate finance, construction finance and construction defect claims.

He is experienced in appellate matters, having had primary responsibility for preparing more than 100 appellate briefs.